Opinion by (after finding tne facts as set out in the-statement of facts) :
The contract in this case is not a building contract. It is not such an erection or fixture so firmly attached to the realty as to compel the defendants to accept it. They had it within their power to accept or refuse to accept upon its completion. The lack of two cables, the difference between a thirty-four inch and a twenty-four inch drum and the absence of the speed governor were all plainly apparent, if even a cursory inspection had been made by one not an expert. The defendants accepted the elevator with these deficiencies or differences between the specifications and the elevator as completed and used it continuously from the 2d day of September until the 14th day of November, without any notice of dissatisfaction or of lack of completeness, according to the plaintiffs’ testimony, and in the letter of the architect no notice of what is defective and no details of the changes desired are contained.
The trial judge in the general charge, referring to the delivery of a carriage built contrary to the instructions of the vendee and received by him despite the difference, said: “ The law would hold that he had waived any objection to it in a case of that kind but that does not apply to building contracts or to cases of complicated machinery, the effect or value of which and the operation of which can only be determined by its use.” As already intimated, we do not regard the agreement, under which the elevator was erected, as a building contract, nor was there any time fixed in the specifications within which it was to be tried. Most of the defects alleged by the defendants were plainly apparent when it was alleged to be completed. That was the time for them to speak. By accepting it and running it continuously, they destroyed its value to the plaintiffs as new machinery. The language of the court below, as quoted above, which is assigned for error, is correct in itself but it does not seem to us that it applies to the present case. An elevator simply put in place, with the building prepared for its reception by the owner and wire for furnishing power carried to the point *146of connection, is not more complicated than the town clock in Dewey v. Erie, 14 Pa. 211; nor is it more of a permanent fixture than the heating furnaces in Butler v. School District, 149 Pa. 351, or the engine and boiler in Hickman v. Shimp, 109 Pa. 16, or in Armor Lith. Co. v. Allegheny Machine Co., 1 Mon. 84. But this is not the crux in this case.
What is called the “ guarantee ” in the specifications is an express warranty upon which the defendants, if they had paid the purchase money, could have recovered and the breach of which can be set up as a defense to the payment of the balance unpaid. In view of this, we cannot see how the plaintiffs were in any way injured by the remarks of the trial judge complained of in the fifth specification of error, nor in this view of the case is there error in the refusal of the first, second and third points for charge, of the plaintiffs, as assigned for error in the first, second and third specifications.
The fourth specification relates to the affirmance by the court of the defendant’s first point, which is as follows : “ The defendant is entitled to a credit for such sum as would be reasonably required in making such material changes, corrections and alterations as are necessary to make the elevator conform to the specifications under which the plaintiffs agreed to construct the elevator.” The defendants were not entitled to unqualified affirmance of this point. The answer should have been limited both as to time and as to the character of the changes, corrections and alterations to be made. The case was tried in January, 1900. The elevator was delivered to the defendants in September, 1898. They were entitled to a credit for such sum and such only as would have been reasonably required to make the changes, corrections and alterations necessary to make the elevator conform to the specifications at the time of the delivery. The testimony had not been limited as to time nor as to the character of the changes necessary to be made and the general affirmance of this point left tbe jury, in the way the case was submitted, to fix a sum, based upon such testimony as that of Marshall, who made the examination of the elevator within a few days'of the trial and whose testimony evidently related to changes which would make the elevator conform to the specifications at the time at which he made the examination, and of a character which would evidently have revolutionized the *147machine. The question was not what would have made the elevator conform to the specifications at the time of trial, but what would have been required in the way of labor and materials to make it conform to the specifications on September 2, 1898, preserving the distinctive characteristics of the Morse, Williams & Company elevators. We think the unqualified affirmance of the defendants’ first point was so broad that the plaintiffs were injured thereby. The fourth specification of error is, therefore, sustained.
Judgment reversed and a new venire awarded.